Case: 07-5347 Document: 1206383 Filed: 09/15/2009 … · Lewis S. Yelin Attorney for Appellee September 15, 2009 Case: 07-5347 Document: 1206383 Filed: 09/15/2009 Page: 2. TABLE OF

[ORAL ARGUMENT HELD OCTOBER 17, 2008]No. 07-5347

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

MENACHEM BINYAMIN ZIVOTOFSKY,by his parents and guardians, ARI Z. and

NAOMI SIEGMAN ZIVOTOFSKY,Plaintiff-Appellant,

v.

SECRETARY OF STATE,Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

APPELLEE’S OPPOSITION TO PETITION FOR REHEARING EN BANC

HAROLD HONGJU KOH Legal Adviser Department of State Washington, D.C. 20520

TONY WEST Assistant Attorney General

CHANNING D. PHILLIPS United States Attorney

DOUGLAS N. LETTER Appellate Litigation Counsel

LEWIS S. YELIN, (202) 514-3425 Attorney, Appellate Staff Civil Division, Room 7322 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001

Case: 07-5347 Document: 1206383 Filed: 09/15/2009 Page: 1

CERTIFICATE AS TO PARTIES,RULINGS, AND RELATED CASES

A. Parties and Amici:

Plaintiff-Appellant is Menachem Zivotofsky.

Defendant-Appellee is the Secretary of State.

B. Rulings Under Review:

Appellant seeks review of the September 19, 2007 order and decision dismiss-

ing all of his claims by the United States District Court for the District of Columbia,

Judge Gladys Kessler, in Civ. No. 03-1921 (GK). The district court’s order appears

at Joint Appendix (JA) 422 and the decision appears at JA 401 and is reported at 511

F. Supp. 2d 97. The panel decision of this Court affirming the district court’s judg-

ment is dated July 10, 2009, and is reported at 571 F.3d 1227.

C. Related Cases:

This case was previously before this Court. See Zivotofsky v. Sec’y, 444 F.3d

614 (D.C. Cir. 2006). We are unaware of any related case pending in this or any other

court.

Respectfully submitted,

Lewis S. Yelin /s/ Lewis S. Yelin Attorney for Appellee

September 15, 2009


TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INTRODUCTION AND SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases

Baker v. Carr, 369 U.S. 186 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 13

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). . . . . . . . . . . 10

Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C.Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528 (1985).. . . . . . . 16

Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006). . . . . . . . . . . . 3

Haig v. Agee, 453 U.S. 280 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986). . . . . . 12

* Lin v. United States, 561 F.3d 502 (D.C. Cir. 2009). . . . . . . . . . . 3, 8, 13, 14

* Authorities on which we chiefly rely are marked with an asterisk.ii


Myers v. United States, 272 U.S. 52 (1926). . . . . . . . . . . . . . . . . . . . . . . . . 16

Nat’l League of Cities v. Usery, 426 U.S. 833 (1976) .. . . . . . . . . . . . . . . . 16

* Nixon v. United States, 506 U.S. 225 (1993). . . . . . . . . . . . . . 3, 7, 11, 13, 14

Population Inst. v. McPherson, 797 F.2d 1062 (D.C. Cir. 1986). . . . . . 3, 14

S. African Airways v. Dole, 817 F.2d 119 (D.C. Cir. 1987). . . . . . . . . . . . . . 3

* United States v. Pink, 315 U.S. 203 (1942). . . . . . . . . . . . . . . . . . . . . . . . . 10

* Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839). . . . . . . . . . . 10, 11

Zivotofsky v. Sec’y, 444 F.3d 614 (D.C. Cir. 2006). . . . . . . . . . . . . . . . . . . . 1

Zivotofsky v. Sec’y, 511 F. Supp. 2d 97 (D.D.C. 2007). . . . . . . . . . . . . . . . . 6

Zivotofsky v. Sec’y, 571 F.3d 1227 (D.C. Cir. 2009). . . . . . . . . . . . . . . . . . . 6

Constitutional Provisions

* U.S. Const. art. II, § 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

Statutes

Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. J, § 107,122 Stat. 1844, 2287. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, § 214, 116 Stat. 1350 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Pub. L. No. 107-228, § 214(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Presidential Material

38 Weekly Comp. of Pres. Docs. 1658 (Sept. 30, 2002). . . . . . . . . . . . . . . . 5

iii


Regulations

U.S. Dep’t of State, 7 FAM § 1300 app. Dof State, 7 FAM . . . . . . . . . . . . . 4

U.S. Dep’t of State, 7 FAM § 1330 app. D.. . . . . . . . . . . . . . . . . . . . . . . . . . 4

U.S. Dep’t of State, 7 FAM § 1360 app. Dof State, 7 FAM . . . . . . . . . . . . . 4

iv


INTRODUCTION AND SUMMARY

Through his parents, Menachem Zivotofsky, a U.S. citizen born in Jerusalem,

sued the Secretary of State, seeking to compel the Secretary to record “Israel” as his

place of birth in his U.S. passport and consular report of birth abroad. For over fifty

years, the United States’ consistent policy has been to recognize no state as having

sovereignty over Jerusalem, leaving that issue to be decided through negotiations by

the parties to the Arab-Israeli dispute. In a prior appeal, this Court determined that

Zivotofsky had standing to sue, and it remanded for development of the record, pri-

marily concerning the foreign policy consequences of recording “Israel” in the pass-

ports of U.S. citizens born in Jerusalem. Zivotofsky v. Sec’y, 444 F.3d 614 (D.C.

Cir. 2006). On remand, Zivotofsky argued that a statute requires the Secretary,

upon request, to record “Israel” as the place of birth of any U.S. citizen born in Jeru-

salem. After considering the State Department’s evidence, the district court dis-

missed the action because it presents a nonjusticiable political question.

Zivotofsky appealed. The panel majority held that the relief Zivotofsky requ-

ested — an order directing the Secretary of State to designate a citizen’s place of

birth abroad — directly implicates the “recognition” power that the Constitution

textually commits solely to the President. The majority thus affirmed the district

court’s dismissal on political question grounds. Judge Edwards concurred in the

judgment. Although he agreed with the majority that Zivotofsky’s claim implicates


the President’s recognition power, Judge Edwards would have ruled against

Zivotofsky on the merits, holding unconstitutional the statute on which he relied.

There is no basis on which to grant Zivotofsky’s petition for rehearing en

banc. The panel majority and concurrence agree that the constitutional recognition

power and the application of that power in designating a place of birth in U.S.

passports “are matters within the exclusive power of the Executive under Article

II, § 3 [of the Constitution], and neither Congress nor the Judiciary has the author-

ity to second-guess the Executive’s policies governing the terms of recognition.”

Conc. Op. 22; see Maj. Op. 10 (same). The majority and the concurrence also agr-

ee that the district court correctly dismissed this suit. Compare Maj. Op. 12 with

Conc. Op. 22. While they disagree on whether dismissal should be termed “juris-

dictional” or “on the merits,” they agree that the ground for dismissal is that the

Constitution textually commits to the Executive Branch the sole authority to desig-

nate Zivotofsky’s place of birth in his U.S. passport. Maj. Op. 10; Conc. Op. 22.

Citing precedent from the Supreme Court and this Court, the majority cor-

rectly held that once a court determines that a plaintiff is challenging a decision

that the Constitution textually commits solely to the Executive Branch, the proper

course is to dismiss the case for lack of jurisdiction, even in a case in which the

plaintiff asserts a statutory right. See, e.g., Nixon v. United States, 506 U.S. 225

(1993); Lin v. United States, 561 F.3d 502 (D.C. Cir. 2009); Gonzalez-Vera v.

2


Kissinger, 449 F.3d 1260 (D.C. Cir. 2006); S. African Airways v. Dole, 817 F.2d

119 (D.C. Cir. 1987); Population Inst. v. McPherson, 797 F.2d 1062 (D.C. Cir.

1986). Even were the Court inclined to revisit the Court’s precedent characteriz-

ing such dismissals as “jurisdictional,” this case does not present a proper vehicle

to do so. Because “the bottom line of the court’s judgment in this case is inescap-

able” (Conc. Op. 22), the Court would be better served to wait for a case in which

the divergent approaches might be outcome determinative. Moreover, the status

of Jerusalem remains one of the most sensitive issues in the Arab-Israeli conflict,

as both the majority and the concurrence recognize. Maj. Op. 4, Conc. Op. at 16.

All members of the panel agree that neither the courts nor Congress has authority

to second-guess the Executive Branch’s decision in this case, which “obviously

aims to further the United States’ policy regarding the recognition of Israel.”

Conc. Op. 16; see id. at 18, 22; see Maj. Op. 7–11. Where continued litigation in

this case would not lead to a different outcome, the United States’ foreign policy

interests would best be served by denying the petition for rehearing en banc.

STATEMENT

1. As we explained in our brief before the panel, the status of Jerusalem is

one of the most sensitive and long-standing disputes in the Arab-Israeli conflict.

U.S. Br. 6–11. For the last sixty years, the United States’ policy has consistently

been that Jerusalem’s status is a matter to be resolved by negotiation between the

3


parties to that dispute. Accordingly, a “central and calibrated feature of every

president’s foreign policy since Harry S. Truman” has been to “express no official

view on the thorny issue of whether Jerusalem is part of Israel.” Maj. Op. 2. The

State Department’s rules governing the identification of the place of birth in pass-

ports of U.S. citizens born in Jerusalem implements that foreign policy. Id. at 2–3;

Conc. Op. 16. Under those rules, the state having sovereignty over a U.S. citizen’s

city of birth is usually recorded as the place of birth. U.S. Dep’t of State, 7 FAM §

1330 app. D. But because the U.S. does not currently recognize the sovereignty of

any state over Jerusalem, passports issued to U.S. citizens born there record only

the city as the place of birth. Id. § 1360 app. D; see Revised 7 FAM § 1300 app. D

at http://www.state.gov/documents/organization/94675.pdf.

2. Section 214 of the Foreign Relations Authorization Act, Fiscal Year

2003, Pub. L. No. 107-228, 116 Stat. 1350 (2002), entitled “United States Policy

with Respect to Jerusalem as the Capital of Israel,” contains various provisions

relating to Jerusalem. Section 214(d), the provision at issue in this case, states1

that “[f]or purposes of the registration of birth, certification of nationality, or issu-

ance of a passport of a United States citizen born in the city of Jerusalem, the Sec-

retary [of State] shall, upon the request of the citizen or the citizen’s legal guard-

Congress has enacted provisions similar to Section 214 in subsequent1

legislation. See, e.g., Consolidated Appropriations Act, 2008, Pub. L. No. 110-161,Div. J, § 107, 122 Stat. 1844, 2287.

4


ian, record the place of birth as Israel.” At the time of enactment, the President

stated that a mandate under Section 214(d) would “impermissibly interfere with

the President’s constitutional authority to formulate the position of the United

States, speak for the Nation in international affairs, and determine the terms on

which recognition is given to foreign states.” 38 Weekly Comp. of Pres. Docs.

1658 (Sept. 30, 2002). Despite the fact that the President’s statement made clear

that “U.S. policy regarding Jerusalem has not changed” (ibid.), the statute pro-

voked widespread international condemnation and confusion about U.S. policy

toward Jerusalem (Maj. Op. 4 (discussing declassified State Department cables)).

3. Menachem Zivotofsky is a U.S. citizen born in 2002 in Jerusalem. Maj.

Op. 4. In December 2002, Menachem’s mother filed an application for a consular

report of birth abroad and a U.S. passport for Menachem, listing Menachem’s

place of birth as “Jerusalem, Israel.” Maj. Op. 4. U.S. diplomatic officials in-

formed Mrs. Zivotofsky that State Department policy required them to record “Je-

rusalem” as Menachem’s place of birth, which is how Menachem’s place of birth

appears in the documents the Zivotofskys received. Id. at 4–5.

On his behalf, Menachem’s parents filed this suit against the Secretary of

State seeking to compel the State Department to identify Menachem’s place of

birth as “Jerusalem, Israel” in the official documents. Id. at 5. This Court re-

versed the district court’s initial dismissal and remanded for the district court to

5


develop a more complete record on the foreign policy implications of recording

“Israel” as Zivotofsky’s place of birth. Zivotofsky v. Sec’y, 444 F.3d 614 (D.C.

Cir. 2006); see Maj. Op. 6. On remand, the State Department explained that if “Is-

rael” were to be recorded as the place of birth of a person born in Jerusalem, such

“unilateral action” by the United States (JA 58) on one of the most sensitive issues

in the negotiations between Israelis and Palestinians “would critically compromise

the ability of the United States to work with Israelis, Palestinians and others in the

region to further the peace process, to bring an end to violence in Israel and the

Occupied Territories, and to achieve progress on the [peace process]” (JA 59).

The district court again dismissed this suit on political question grounds.

Zivotofsky v. Sec’y, 511 F. Supp. 2d 97, 102–03 (D.D.C. 2007). In a divided opin-

ion, this Court affirmed. Zivotofsky v. Sec’y, 571 F.3d 1227 (D.C. Cir. 2009).

The panel majority (Griffith and Williams, JJ.) agreed that Zivotofsky’s

claim presents a nonjusticiable political question. Maj. Op. 12. “Following the

framework laid out in Nixon v. United States,” the majority began “by

‘interpret[ing] the [constitutional] text in question and determin[ing] whether and

to what extent the issue is textually committed’ to a political branch.” Id. at 7

(quoting 506 U.S. at 228); see Baker v. Carr, 369 U.S. 186, 217 (1962). The “is-

sue” before the Court, as the majority saw it, “is whether the State Department can

lawfully refuse to record [Zivotofsky’s] place of birth as ‘Israel’ in the face of a

6


statute that directs it to do so.” Maj. Op. 12. The majority determined that the

President’s textual authority to “‘receive Ambassadors and other public Ministers’

(U.S. Const. art. II, § 3) includes the power to recognize foreign governments”

(Maj. Op. at 7; see id. at 8 (collecting cases)), and to decide “what government is

sovereign over a particular place.” Id. at 8 (collecting cases). Based on this prece-

dent, the majority held that “the President has exclusive and unreviewable consti-

tutional power to keep the United States out of the debate over the status of Jerusa-

lem.” Id. at 9. The State Department’s determination to record “Jerusalem” as the

place of birth in passports of U.S. citizens born in that city “implements this long-

standing policy.” Ibid. Zivotofsky’s request that the courts order the State De-

partment to record his place of birth as “Israel” “trenches upon the President’s

constitutionally committed recognition power.” Ibid. Accordingly, the majority

held, Zivotofsky’s claim presents a political question. Ibid.

The majority recognized Zivotofsky’s argument that he asked the Court “to

do nothing more than interpret a federal statute — a task within our power and

competence.” Id. at 10. But the majority held that, in light of the President’s sole

constitutional authority to decide the issue presented by Zivotofsky’s claim, the

Supreme Court’s and this Court’s precedent required dismissal for lack of jurisdic-

tion. Id. at 10–11. That a plaintiff claims a violation of a statutory right does not

create jurisdiction in a case otherwise requiring review of a decision constitution-

7


ally committed solely to the President. Although courts are competent to interpret

statutes, they “will decline to ‘resolve [a] case through * * * statutory construc-

tion’ when it ‘presents a political question which strips us of jurisdiction to under-

take that otherwise familiar task.’” Id. at 11 (quoting Lin, 561 F.3d at 506).

Judge Edwards concurred in the judgment. He agreed with the majority

that, under the Constitution, “[t]he Executive has exclusive and unreviewable au-

thority to recognize foreign sovereigns.” Id. at 14. He further found it “obvi-

ous[]” that the Jerusalem passport policy “aims to further the United States’ policy

regarding the recognition of Israel.” Id. at 16. And, like the majority, Judge Ed-

wards concluded that as “these are matters within the exclusive power of the Exec-

utive * * *, neither Congress nor the Judiciary has the authority to second-guess

the Executive’s policies governing the terms of recognition.” Id. at 22.

However, Judge Edwards disagreed with the majority’s framing of the cen-

tral issue. He identified the issue as “[w]hether § 214(d) * * * which affords

Zivotofsky a statutory right to have ‘Israel’ listed as the place of birth on his pass-

port, is a constitutionally valid enactment.” Conc. Op. 3. As he saw the statute’s

constitutionality as the central issue presented, Judge Edwards would not have af-

firmed the district court’s dismissal on political question grounds. Conc. Op. 13.

Instead, he would have held the statute unconstitutional because it “impermissibly

intrudes on the President’s exclusive power to recognize foreign sovereigns.” Id.

8


at 22. Thus, Judge Edwards would have affirmed the dismissal on the alternative

ground that “Zivitofsky has no viable cause of action under § 214(d).” Ibid.

ARGUMENT

Through this suit, Zivotofsky seeks to have the courts impose on the Execu-

tive Branch his preferred foreign policy: recognizing Israel as sovereign over Jeru-

salem. See JA 27 (Zivotofsky Decl. ¶ 9) (“It is important to us as a matter of con-

science and we believe it will be important to our children that, if born in Israel,

they be recognized as natives of Israel, and that the country of birth not be erased

nor omitted from their travel documents.”); Pet. 12 (accepting the representation

that a change in the Jerusalem passport policy would cause significant diplomatic

harm “effectively perpetuates for eternity any misguided and erroneous practice or

policy initiated by the State Department.”). The panel majority and the concur-

rence agree this is something Zivotofsky cannot do because the Constitution vests

this policy choice solely in the President. En banc consideration is not warranted

to consider the point of disagreement between the majority and concurrence:

whether this suit should be dismissed on jurisdictional grounds or on the merits.

1. The majority and the concurrence agree that the Executive Branch’s de-

cision to record Jerusalem as the place of birth of U.S. citizens born in that loca-

tion is constitutionally committed to the President’s sole discretion. Maj. Op. 10,

Conc. Op. 17. That conclusion is amply supported by years of precedent.

9


The Constitution grants solely to the President the power to “receive Am-

bassadors and other Public Ministers.” U.S. Const. art. II, § 3. The Supreme

Court has long recognized that the logical implication of this authority is that the

Constitution commits to the President the authority to recognize the foreign sover-

eign that sends the ambassador or public minister the President chooses to receive.

See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964); United

States v. Pink, 315 U.S. 203, 229 (1942); Williams v. Suffolk Ins. Co., 38 U.S. (13

Pet.) 415, 420 (1839). A further logical corollary is that the President’s recogniti-

on power “includes the power to determine the policy which is to govern the ques-

tion of recognition.” Pink, 315 U.S. at 229. Because the President has the author-

ity to establish the policy under which a foreign state is to be recognized, he has

the power to decide, for purposes of U.S. law, which country has sovereignty over

disputed foreign territory. Baker, 369 U.S. at 212; Williams, 38 U.S. (13 Pet.) at

420. And there can be no serious dispute about whether the State Department’s

passport policy regarding Jerusalem is encompassed within the President’s recog-

nition power. A passport “is a ‘political document’ that is ‘addressed to foreign

powers,’ ‘by which the bearer is recognized, in foreign countries, as an American

citizen.” Conc. Op. 18 (quoting Haig v. Agee, 453 U.S. 280, 292 (1981)); see Maj.

Op. at 9. “A ‘political document’ indicating that a person born in Jerusalem is

from the sovereign nation of Israel misstates the United States’ position on the

10


recognition of Israel.” Conc. Op. 18; see Maj. Op. 9.

2. The panel majority correctly held that Zivotofsky’s claim is nonjustici-

able under the political question doctrine. As the majority recognized, Nixon v.

United States instructs courts considering whether a case presents a political ques-

tion to “begin by ‘interpret-[ing] the [constitutional] text in question and

determin[ing] whether and to what extent the issue is textually committed’ to a

political branch.” Maj. Op. 7 (quoting 506 U.S. at 228). Zivotofsky claims a stat-

utory right to have Jerusalem recorded as the place of birth on his passport. As the

majority and concurrence both determined, the State Department’s Jerusalem

passport policy is an exercise of the President’s recognition power. The decision

how to record in a U.S. passport the place of birth of a citizen born in Jerusalem is

thus exclusively committed to the Executive Branch by the Constitution.

Zivotofsky’s claim challenges that decision and hence raises a political question.

Thus, the State Department can lawfully refuse to record Zivotofsky’s place of

birth as “Israel,” and any claim seeking to have a court order the State Department

to do so is nonjusticiable under the political question doctrine. Maj. Op. 7–9.

The panel majority recognized that Zivotofsky’s claim of right is based in a

statute. Maj. Op. 10. But for the reasons the majority gave, this fact, standing

alone, does not transform Zivotofsky’s claim into a justiciable controversy. Courts

are, of course, fully competent to interpret statutes and to decide questions con-

11


cerning the separation of powers. See, e.g., Japan Whaling Ass’n v. Am. Cetacean

Soc’y, 478 U.S. 221, 230 (1986). But under Nixon, once a court determines that

an issue is textually committed by the Constitution to a political branch of govern-

ment, that conclusion resolves the case, whether or not a statute is also at issue.

Contrary to Zivotofsky's assertion, this is not a case in which the majority

dismissed on political question grounds simply because the challenged “regula-

tions implemented foreign policy.” Pet. 5; see id. at 4 (citing Comm. of U.S. Citi-

zens Living in Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988), for prop-

osition that claims of right are not nonjusticiable simply because “they implicate

foreign policy decisions”). Rather, the panel majority, like the Supreme Court in

Nixon, dismissed the case on political question grounds only after “‘interpret[ing]

the [constitutional] text in question and determin[ing] whether and to what extent

the issue is textually committed’ to a political branch,” and determining that the

designation of a place of birth for purposes of a passport is textually committed to

the Executive. Maj. Op. 7 (quoting Nixon, 506 U.S. at 228); see Nixon, 506 U.S.

at 238 (dismissing on political question grounds “after exercising [the Court’s]

delicate responsibility” as “ultimate interpreter of the Constitution” to ensure that

the challenged action is one committed by the Constitution to the authority of the

political branch) (quoting Baker, 369 U.S. at 211). Thus, the panel majority did

not suggest that a court must blindly accept the Executive’s assertion that the sub-

12


ject of the dispute lies within its textually committed authority.

The majority’s approach is congruent with this Court’s precedent. Recently,

in Lin v. United States, the Court held that plaintiffs’ claim — turning on Taiwan’s

status — came within the President’s recognition power and so presented a politi-

cal question. See 561 F.3d at 503–04. The Lin plaintiffs argued, as does Zivotofs-

ky, that their case involves “a straightforward question of treaty and statutory in-

terpretation well within the Article III powers of the court.” Id. at 506. While the

Court agreed that it “could resolve this case through treaty analysis and statutory

construction,” it “decline[d] to do so as this case presents a political question

which strips us of jurisdiction to undertake that otherwise familiar task.” Ibid.

Lin was itself not groundbreaking. The Court previously held that plain-

tiffs’ claims based on statutory right can still be nonjusticiable so long as they

present political questions textually committed to the political branches. Gonza-

lez-Vera, 449 F.3d at 1264 (a statutory claim “may not be heard if it presents a po-

litical question.” (citations omitted)). And prior to Gonzalez-Vera, the Court in

other cases considered first whether a statutory claim involved an issue constitu-

tionally committed to a political branch before reaching the merits. S. African Air-

ways, 817 F.2d at 123; Population Inst., 797 F.2d at 1070; see Maj. Op. 10–12.

3. In any event, the Court and the United States’ foreign policy interests

would be better served if the Court were to wait for a more appropriate vehicle if it

13


wishes to reconsider the proper basis for dismissal of claims based on statutory

right, but implicating a power textually committed to the Executive Branch by the

Constitution. Under Nixon, the critical issue is “whether and to what extent the

issue is textually committed” to a coordinate branch of government. 506 U.S. at

228. In this case, the “extent” of the textual commitment is not reasonably disput-

able. The majority and the concurrence agree that the State Department’s passport

policy is a direct exercise of the President’s recognition power. See, e.g., Maj. Op.

9, Conc. Op. 16. For that reason, “the bottom line of the court’s judgment in this

case” — dismissal — “is inescapable.” Conc. Op. 22. Moreover, the status of

Jerusalem remains one of the most sensitive issues in the Arab-Israeli dispute.

Continued litigation in this case creates the possibility of doubt about whether the

President speaks for the Nation in determining U.S. recognition policy concerning

Jerusalem. Where further litigation in this case would not lead to a different out-

come, U.S. foreign policy interests would best be served by denying the petition.

4. Finally, the petition should be denied because Zivotofsky identifies no

compelling reasons for rehearing en banc. Zivotofsky presents three arguments in

support of rehearing. First, he contends that the majority erred in affirming dis-

missal on political question grounds because all the court had to do was interpret a

statute. Pet. 2–6. But Zivotofsky nowhere addresses the framework established

by the Supreme Court in Nixon v. United States, which was central to the major-

14


ity’s decision (see, e.g., Maj. Op. 6–7). Similarly, Zivotofsky nowhere discusses

the majority’s reliance (see Maj. Op. 11) on this court’s prior cases such as Lin,

which make clear that this Court will decline to adjudicate claims of statutory right

when those claims present nonjusticiable political questions.

Zivotofsky next argues that en banc review is required to address his argu-

ment, which, he complains, was “ignored by both the majority and concurring

opinions” (Pet. 6), that the President must abide by every provision in a statute he

chose to sign (id. at 6–10). But it has long been settled that the President need not

comply with a statutory provision that infringes his constitutional authority. See,

e.g., Myers v. United States, 272 U.S. 52 (1926); Nat’l League of Cities v. Usery,

426 U.S. 833, 841 n.12 (1976) (that President signed legislation does not prevent

him from challenging statute’s constitutionality) (discussing Myers), overruled on

other grounds by Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528 (1985).

Lastly, Zivotofsky seeks en banc review of the question whether Section

214(d) impermissibly infringes on the President’s recognition power. Pet. 10–12.

But as the majority and the concurrence concluded (Maj. Op. 9–10; Conc. Op.

15–18), and as discussed above, there can be no reasonable dispute on this issue.

CONCLUSION

The petition for rehearing en banc should be denied.

Respectfully submitted,

15


HAROLD HONGJU KOH Legal Adviser Department of State Washington, D.C. 20520

TONY WEST Assistant Attorney General

CHANNING D. PHILLIPS United States Attorney

DOUGLAS N. LETTER Appellate Litigation Counsel

LEWIS S. YELIN Lewis S. Yelin /s/(202) 514-3425 Attorney, Appellate Staff Civil Division, Room 7322 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001

September 15, 2009

16


CERTIFICATE OF SERVICE

I hereby certify that on September 15, 2009, I caused the foregoing Appel-

lee’s Opposition To Petition for Rehearing en Banc to be filed with the Court and

served upon counsel by using the CM/ECF filing system. In addition, I caused

courtesy copies to be served upon the following counsel by U.S. mail and elec-

tronic mail as indicated:

Nathan LewinAlyza D. LewinLEWIN & LEWIN, LLP1828 L Street, NW, Ste. 901Washington, DC [email protected]@lewinlewin.com

Lewis S. Yelin /s/ Lewis S. Yelin Attorney for Appellee


Documents

Case: 07-5347 Document: 1206383 Filed: 09/15/2009 … · Lewis S. Yelin Attorney for Appellee September 15, 2009 Case: 07-5347 Document: 1206383 Filed: 09/15/2009 Page: 2. TABLE OF